Appointing an Out of State Executor

If the best candidate to appoint as the executor of your estate lives in a different state than you, it is possible to designate him or her. However, there are some drawbacks to doing so that need to be considered.

The executor of your estate should be someone trustworthy who has financial acumen and who is willing to undertake the sometimes thankless job. Ideally, the executor will live nearby but sometimes the best person for the job does not live nearby and instead lives in a different state.

Nevertheless, you can still designate that person as your executor, but there are some drawbacks to doing this.

This subject was considered in a recent NWI Times article entitled "Pros and cons of an out-of-state executor."

The two biggest drawbacks are availability and time.

Executors are often required to make personal appearances at court hearings. It can be burdensome and expensive for an out-of-state executor to make the travel arrangements. Logistically, paper correspondence may also take longer.

According to the article, some states have additional requirements when the executor is a non-resident. For example, the state of Indiana requires out-of-state executors to post a bond and appoint someone who is a state resident as a registered agent for service of process. Other states have similar requirements.

On the plus side, appointing an out-of-state executor allows you to designate the best person for the job. Many of the negatives of doing so can be mitigated if the executor hires a local estate attorney to assist with the administration.

In fact, an estate planning attorney can help you with this essential selection and other critical decisions when planning your estate.  For more information, please visit our website at www.OCElderlaw.com or call 714-525-4600 to speak with an estate planning attorney in Orange County or Corona.

Reference: NWI Times (Feb. 7, 2016) "Pros and cons of an out-of-state executor."

Court Declines to Enforce Nursing Home's Arbitration Clause

Many nursing homes insert mandatory arbitration clauses in their contracts with elderly patients. They do not do so for the benefit of the elderly.

If you read the fine print on almost any standard contract a large company makes a consumer sign, you will most likely find a clause that any dispute between the consumer and the company concerning the contract must be submitted to arbitration.

Increasingly, nursing homes and other elder care facilities are also inserting these clauses in their contracts.

Companies are quick to note that arbitration is normally faster and cheaper than going to court.

However, consumer advocates and elder law attorneys point out that these clauses do not necessarily benefit consumers. In reality, arbitration can make it more difficult for consumers to prevail and remedies that might be available in court are sometimes not available in arbitration.

The Wills, Trusts & Estates Prof Blog reports that a court in Arizona recently refused to enforce the arbitration clause in one nursing home's contract in "Arizona Court Overturns Home Arbitration Agreement."

In this case, the man who signed the contract on behalf of his mother did not have any legal authority to bind her to arbitration. He was not her power of attorney.

Going further, the court also signaled that such a ruling could apply more broadly. According to the court, the arbitration clause could be seen as an unenforceable contract of adhesion.

As the article notes, in many states consumers have a legal right to strike out the arbitration clauses before signing the contracts.

If you have any questions about nursing homes and arbitration in California, consult with our elder law attorneys beforehand. You can reach OC Elder Law at (714) 525-4600.

Reference: Wills, Trusts & Estates Prof Blog (Feb. 2, 2016) "Arizona Court Overturns Home Arbitration Agreement."

Who Is Eligible for Social Security Survivor's Benefits?

When someone passes away the money that he or she has invested in Social Security is not necessarily wasted. Dependents might be able to claim it through survivor's benefits.

Social Security is essentially a forced retirement plan. We put money into the program and receive it back when we retire in the form of monthly payments. Obviously, it is more complex than that, but that is the basic idea.

On the other hand, unlike other retirement plans, we do not name a beneficiary for our Social 

Security. It does not automatically go to anyone else we choose when we pass away. That does not mean that all the saving was wasteful.

Some people can claim survivor's benefits and get the benefit of that saving.

The Lowell Sun recently listed who might be eligible for those benefits in "Social Security has survivor's benefits."

The list includes:

·        Widows/Widowers – A widow or widower can get full survivor's benefits when he or she reaches retirement age or sooner if taking care of a child under the age of 16.

·         Divorced Widow/Widower – Someone who was married to the deceased for at least 10 years may be able to get survivor's benefits.

·         Minor Children – Children of the deceased under the age of 18 are eligible for the benefits. If still a full-time student, then benefits are available until the age of 19. Benefits can be claimed at any time if the child of the deceased became disabled before the age of 22.

·         Parents – If a parent depended on the deceased for at least half of his or her support and the parent is over the age of 62, then the parent is eligible for survivor benefits.

The Social Security Administration is unlikely to chase you down if you are eligible for survivor's benefits and are not claiming them, so if you have any questions about your eligibility, consult with an elder law attorney.

For more information on Elder Law and Estate Planning in Orange County, please visit our website at www.OCElderLaw.com, or call our office at 714-525-4600 to schedule an appointment with an attorney.

Reference: Lowell Sun (Jan. 24, 2016) "Social Security has survivor's benefits."

Think Twice Before Challenging a Will

When people are upset over an inheritance their first instinct is often to contest the will. However, will contests have high emotional and financial costs and should not be undertaken lightly.

The Rochester Business Journal recently published an interesting article about the costs and difficulty of challenging a will in an article entitled "Choosing to contest a will costs financial, emotional tolls."

As the article explains, contesting a will almost always create rifts in families. These rifts are similar to the emotional impact of getting a divorce. Hurt feelings between relatives take a long time to heal and many times they never do.

The article also explains why challenging a will is so financially costly.

To be successful with a challenge it must be proven that the testator was not mentally competent to create the will.

This is very difficult for two reasons. First, it does not take much to be competent enough to make a will. The person does not need to be generally competent to do everything else in life. When it comes to testamentary capacity he or she just needs to be lucid enough at the time to understand and approve of the will. Secondly, in almost all circumstances the person who wishes to contest a will was not present when the will was signed. Consequently, this makes it impossible for the person to have direct knowledge regarding whether the testator was lucid and mentally incompetent.

This does not mean that wills should never be challenged. It just means that anyone thinking about contesting a will should proceed with caution and seek the services of an experienced estate attorney.

A will contest should only be initiated after the attorney has time to review the case and assess the likelihood that the will contest will be successful.

If you have estate planning questions about wills and trusts in Orange County, visit our website at www.OCElderLaw.com, or contact one of our attorneys at 714-525-4600 for more information.

Reference: Rochester Business Journal (Jan. 8, 2016) "Choosing to contest a will costs financial, emotional tolls."